State v. Hunt
| Decision Date | 07 April 1978 |
| Docket Number | No. 3881,3881 |
| Citation | 118 Ariz. 431,577 P.2d 717 |
| Parties | STATE of Arizona, Appellee, v. Wade Brian HUNT, Appellant. |
| Court | Arizona Supreme Court |
George M. Rushforth, Kingman, for appellant.
Appellant Wade Brian Hunt was charged with one count of burglary and two counts of furnishing drugs. Appellant's motion to sever the burglary count from the counts on furnishing drugs was granted. Appellant was then convicted of first-degree burglary, A.R.S. § 13-301, and in a later trial was also found guilty of two counts of furnishing narcotic drugs. A.R.S. § 36-1002.02. Based on the verdicts the trial court entered judgment and sentenced appellant to consecutive terms of imprisonment in the state prison. A timely appeal was filed. We took jurisdiction pursuant to 17A A.R.S.Sup.Ct.Rules, rule 47(e)(5).
Between 9:00 p. m. on January 30, 1976 and 7:00 a. m., January 31, 1976 numerous drugs were taken during a burglary of the Bullhead Pharmacy in Bullhead City, Arizona. Appellant became a suspect in the burglary after William McLean made statements to the police that connected the appellant to the burglary. Police questioned McLean after he and one Randy Jones had been arrested for possession of drugs which were found in appellant's automobile. In addition to making statements connecting appellant to the burglary, McLean also led police to some of the stolen drugs. Two other witnesses, David Mark Zyla and Thomas Weber testified that appellant boasted to them of committing the burglary. Appellant's conviction of furnishing drugs was based on Zyla's testimony that appellant had given him some of the drugs taken in the burglary.
Although appellant raises numerous issues on appeal, we shall discuss only those issues which merit consideration. The other issues raised, but not discussed, are so lacking in merit that they do not require discussion.
Appellant contends that the trial court erred in not imposing sanctions for the failure of the state to comply with the provisions of the criminal rules applicable to discovery. Specifically, appellant sought to have the trial court preclude the state from calling as witnesses Jones and McLean. 17 A.R.S. Rules of Criminal Procedure, rule 15.7(a)(4).
The state had furnished several police reports to appellant. The names of witnesses appeared in the reports, but the state had not furnished any written or recorded statements by two witnesses Jones and McLean. The trial court ordered the statements of Jones and McLean to be furnished by April 23, and if not furnished the state was to be precluded "from going into these issues at the trial."
The statements were not furnished by the date required, and it was not until the day of trial that a summary of the statements made by Jones and McLean was furnished to the appellant. The summary had been prepared by Officer Charles Street of the Mohave County Sheriff's Office based on his recollection of the interviews that he had had with the two witnesses. It was also disclosed for the first time that the tape of the interview had been destroyed.
The trial court, in response to the appellant's motion to impose sanctions, held a hearing to determine the proper course. The trial judge also ordered that the two witnesses be made available to the defense counsel for interview, and that the case be continued for one day.
At the hearing on the motion to impose sanctions, the evidence disclosed that Officer Charles Street of the Mohave County Sheriff's Office had interviewed the two witnesses and recorded the interviews. The officer had given the tape to the typist to transcribe and he then went on vacation, assuming that everything was in good order and that the usual procedures would be followed. Sometime shortly before the trial he found that the tape had been destroyed, so he wrote up a summary of his recollections of the statements given to him by Jones and McLean.
Officer Robert Melton of the Mohave County Sheriff's Office testified concerning the destruction of the tape:
(Reporter's Transcript, Pages 151 and 152)
After the hearing the trial judge refused to preclude the state from calling the two witnesses, Jones and McLean, but he did offer to allow the defense counsel any additional time he might need for a continuance. The trial judge stated that he felt that there was no prejudice because the tape being useless could not have aided the defense. The trial court was convinced that there was no intentional destruction of material evidence nor tampering with the tape.
The sanctions imposed for violation of discovery rules are within the discretion of the trial court. Factors to be taken into account include: 1) reasons for nondisclosure; 2) the extent of prejudice, if any, to the opposing party; 3) the feasibility of rectifying that prejudice by continuance; and 4) any other relevant circumstances. See State v. Clark, 112 Ariz. 493, 543 P.2d 1122 (1975); State v. Fenton, 21 Ariz.App. 193, 517 P.2d 1086 (1974). In the case at issue the tape would not have aided the defense had it been preserved because it was unintelligible. The destruction of the tape occurred without any attempt to keep material evidence from the defense. The witnesses were made available to the defense for interview, and prior to the interview the defense was furnished with a summary of their statement made to the interviewing officer. The defense was offered an additional continuance if desired, but the offer was declined.
While the actions of the state and the investigating officers are subject to criticism, we agree with the trial court that the appellant was not prejudiced. The trial court did not abuse its discretion in allowing the witnesses to testify.
Appellant urges that the jury should have been made aware of the destruction of the tape. The appellant did not bring out any matter concerning the tape during the trial. The appellant can not very well complain of errors which are not raised at trial. State v. Coward, 108 Ariz. 270, 496 P.2d 131 (1972). Counsel for appellant suggests that he was precluded from going into this issue by the court's comment:
"(A)nd I further advise all parties in the room that until Jones and McLean have testified, this matter will not be discussed publicly in the presence of the jury or where a juror can over hear it." (Reporter's Transcript, Page 156)
Although the quoted statement is taken out of context it does not serve to support the position of appellant. It is clear that the trial court did not preclude raising the issue of the tape after the two witnesses had testified, so there was nothing to prevent counsel for appellant from offering evidence on the tape, if he wished, after the witnesses had testified. The two witnesses had nothing to do with the matter of the destruction of the tape. Counsel was well aware of the identity of the person who disposed of the tape. Nothing in the trial court's comment prevented inquiry into the issue after the two witnesses had testified.
The appellant complains that he was not advised of the address changes for the witnesses Zyla, McLean and Jones. Since these witnesses were all provided for interview by the defense there was no prejudice shown.
Appellant contends that the state failed to disclose the felony conviction of Zyla. There was no failure to disclose such information because there had not been a felony conviction of Zyla at the time of appellant's burglary trial; further appellant was allowed to question the witness
Zyla at the burglary trial concerning the pendency of criminal charges. It was not until after the burglary trial that Zyla was convicted of a felony, and appellant used that fact to impeach the witness Zyla when he testified in the second trial on the charge of furnishing narcotics. There was no violation of the discovery rules in the above instance.
Appellant argues that the search and seizure of appellant's automobile 1 and the arrest of Jones and McLean were made without probable cause, and all evidence and information derived therefrom should be excluded under Wong Sun v. United States, 371 U.S. 471, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). The facts concerning this issue are that on ...
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